Doe v. Lennox School Dist. No. 41-4, No. CIV. 02-4220.
| Decision Date | 18 December 2003 |
| Docket Number | No. CIV. 02-4220. |
| Citation | 329 F.Supp.2d 1063 |
| Parties | Jane DOE, Individually and as Guardian Ad Litem for Judy Doe, a Minor Child, Plaintiffs, v. LENNOX SCHOOL DISTRICT NO. 41-4, Albert Van Overmeer, Individually and in his capacity as Superintendent of Lennox School District No. 41-4, and Roger Degroot, Individually and in his capacity as Principal of Tea Elementary School, Defendants. |
| Court | U.S. District Court — District of South Dakota |
Richard D. Casey, Lynn, Jackson, Shultz & Lebrun, P.C., Sioux Falls, SD, for Plaintiff.
Michael L. Luce, Susan Brunick Simons, Dana Van Beek Palmer, Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD, for Defendant.
Pending before the Court is Defendants Lennox School District No. 41-4, Albert Van Overmeer, and Roger DeGroot's Motion for Summary Judgment, Doc. 35. This Court has earlier dismissed Count II of Plaintiffs' Amended Complaint, which alleged a violation of the South Dakota Human Rights Act, and Count IV of Plaintiffs' Amended Complaint, which alleged a § 1983 claim. Defendants are moving for summary judgment on the causes of action alleging violations of Title IX of the Educational Amendment of 1977, and violations of Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act. Defendants are also seeking summary judgment against Plaintiffs on the state claims for intentional infliction of emotional distress and negligence. This Court heard oral argument on the summary judgment motion on October 20, 2003, and is now granting the motion for summary judgment with regard to the claims over which this Court has original jurisdiction, and dismissing without prejudice the claims based on state law.
The minor Plaintiff, Judy Doe, was a first grade student at Tea Elementary School during the 2000/2001 school year. The Tea Elementary School is part of the Lennox School District. Some time before March 20, 2001, after leaving the restroom at school, Judy was kissed on the lips by a first grade male student, John Smith. Judy advised her teacher, who telephoned both children's parents and advised them of the incident. Judy's teacher also contacted the principal, Dr. DeGroot, who met with the teacher and John Smith the next morning. As a result of the kissing incident, John Smith lost his recess and received a verbal reprimand. After the kissing incident, the teacher also advised Judy's mother, Jane Doe, that Judy and John Smith would not be permitted to go to the bathroom at the same time.
On the evening of the kissing incident, Judy advised Jane Doe that John Smith had told Judy not to tell about the kissing incident. Judy described to her mother the manner in which she had been kissed. Jane Doe characterized the description as involving a kiss that was more "seductive" than Jane Doe would have expected. Jane Doe contacted the teacher the next day and described the "seductive" nature of the kiss. Jane Doe testified that the teacher told her she was not surprised. Jane Doe had been a volunteer in Judy's classroom. Although Jane Doe contends that the teacher told her that John Smith had demonstrated sexually inappropriate actions and was to be put on Ritalin, Jane Doe has not clarified whether this statement was made before or after the kissing incident. The teacher testified that John Smith had a number of behavioral problems, which did not include any sexual acting out.
On March 20, 2001, the teacher left the class in the school's lunch room and went to the teachers' lounge to have lunch at 11:15 a.m. At that time at the Tea Elementary School, supervisors were present in the lunchroom, the hallway, and outside on the play ground. After the children ate their lunch, they were supposed to walk down a hallway to their lockers, put on their coats and boots, and go outside the building to the playground. An aide was placed in the hallway to watch the children as they left the lunchroom and walked through the hallway to make sure the students did not run, push and shove, and that they got outside to the playground. Although the first grade students kept their coats and boots in lockers in the hallway outside the classroom, the teacher had them put their shoes on their desks before going to the locker to get their boots.
On March 20, 2001, apparently while being in the classroom to put their shoes on their desks, Judy Doe and John Smith were left unsupervised during the lunch break prior to going out on the playground. Later that day Judy told her teacher that John Smith exposed his bottom and his penis to her. The teacher, the school counselor, and the principal, Dr. DeGroot, then spoke with John Smith who eventually admitted that what Judy had reported was true. The teacher contacted Jane Doe that afternoon and advised her that John Smith had exposed himself to her daughter. Later that evening Judy tod her mother that during the lunch break, John Smith had also touched her outside her clothing on her butt. The next evening Judy told her mother that during the March 20 lunch break. John Smith promised her five "Fruit by the Foot" candy if she would pull down her pants. Judy said that she pulled down her pants and John Smith touched her near her rectum with his finger.
After John Smith admitted exposing himself to Judy Doe, Dr. DeGroot contacted and met with John Smith's parents. John Smith was then suspended from school for ten days, and was not allowed to return to school until his parents submitted a written statement from a psychologist asserting that John Smith was not a danger to other children. The school officials also contacted law enforcement and the Department of Social Services regarding the incident. John Smith was put in another first grade classroom upon his return to school, and the school employees were advised that Judy and John Smith were not supposed to have any contact in the school and on the playground. Other safety measures such as locking doors were put into place. The day after the incident, the teacher and principal met with Jane Doe and the man she lives with to discuss what action was being taken regarding the March 20 incident. The school also offered to provide counseling to Judy to assist her in coping with the incident.
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, the Court is required to view the facts in the light most favorable to the non-moving party and must give that party the benefit of all reasonable inferences to be drawn from the underlying facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir.1987). The moving party bears the burden of showing both the absence of a genuine issue of material fact and its entitlement to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Once the moving party has met its burden, the non-moving party may not rest on the allegations of its pleadings but must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 257, 106 S.Ct. 2505; City of Mt. Pleasant v. Associated Elec. Coop., Inc., 838 F.2d 268, 273-74 (8th Cir.1988). Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Title IX provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance." 20 U.S.C. § 1681. Title IX provides a private cause of action against a recipient of federal funds for discrimination based on sex. Cannon v. Univ. of Chicago, 441 U.S. 677, 708-09, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). Sexual harassment and sexual abuse constitute discrimination under Title IX. Franklin v. Gwinnett County Public Schools, 503 U.S. 60,75, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992); Ostrander v. Duggan, 341 F.3d 745, 750 (8th Cir.2003). However, a recipient of federal funds may only be liable for damages arising from the recipient's misconduct. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 640, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999).
In order for Plaintiff Judy Doe to prevail on her Title IX claim against the Defendant School District for student-on-student harassment, she must show that the school district (1) acted with deliberate indifference to known acts of harassment in its programs or activities; (2) the harassment was so severe, pervasive, and objectively offensive in nature that (3) Plaintiff Judy Doe was effectively barred access to an educational opportunity or benefit. Id. at 650-651, 119 S.Ct. 1661. In addressing the "known acts of harassment" in this case, particularly the kissing incident involving the two first graders, this Court appreciates the concerns expressed by the Seventh Circuit Court of Appeals in dealing with a similar claim involving kindergarten students. The Seventh Circuit observed as follows:
There is a threshold question, altogether reasonable and rational, of whether a five or six year old kindergartner can ever engage in conduct constituting "sexual...
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